Clark v The Queen - [2020] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0111

Appellant

CHASE CLARK

Respondent

THE QUEEN

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JUDGES:	MAXWELL P and T FORREST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	19 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 125
JUDGMENT APPEALED FROM:	[2019] VCC 104 (Judge Cahill)

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CRIMINAL LAW – Appeal – Sentence – Parity – Home invasion – Theft – Intentionally damage property – Appellant sentenced to 6 years’ imprisonment, 3 years and 9 months non-parole period – Co-offender sentenced to 3 years and 9 months’ imprisonment, 1 year and 9 months non-parole period – Prosecutor submitted on plea appellant and co-offender should have same head sentence – Whether open to differentiate between appellant and co-offender based on different roles and criminal records – Appeal dismissed.

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REPRESENTATION:	Counsel	Solicitors
For the Appellant	Ms E H Ruddle	Emma Turnbull Lawyers
For the Respondent	Mr G M Hughan	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
T FORREST JA:

Summary

The appellant and a co-offender, Jessica May (‘May’), entered a house in the early hours of the morning, with intent to steal. The appellant was armed with a sawn-off shotgun. After stealing a number of items, the offenders forced open the automatic gates to the property, damaging them in the process, and attempted to take a motor car.

They each pleaded guilty to a series of offences, the most serious being home invasion under s 77A of the Crimes Act 1958, which carries a maximum penalty of 25 years’ imprisonment. The appellant was sentenced to a total effective sentence of 6 years’ imprisonment, with a non-parole period of 3 years and 9 months. May was sentenced to a total effective sentence of 3 years and 9 months’ imprisonment, with a non-parole period of 1 year and 9 months.

The appellant was granted leave to appeal against his sentence on a single ground, namely, that the sentencing differential between his sentence and that imposed on May infringed the principle of parity. For reasons which follow, we are satisfied that there was no breach of parity. That is, it was reasonably open to the sentencing judge to differentiate between the appellant and May in the way he did, having regard to the material differences between them — as to their respective roles in the offending and their respective criminal records.

Factual and procedural background[1]

[1]Paragraphs 4–17 are based on the reasons given by Kyrou JA on 18 September 2019 for granting leave to appeal.

The appellant pleaded guilty to the charges set out in the below table and, on 1 February 2019, he was sentenced as follows:[2]

[2]DPP v Clark [2019] VCC 104 (‘Reasons’).

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Home invasion [s 77A Crimes Act 1958]	25 years	5 years, 6 months	Base
2	Intentionally damage property [s 197(1) Crimes Act 1958]	10 years	6 months	2 months
3	Theft (property from home)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v The Queen

Details

AGLC: Clark v The Queen [2020] VSCA 125
Case: [2020] VSCA 125
Decision Date: 19 May 2020

CaseChat Overview and Summary

The appellant, Clark, appealed against his sentence following a conviction for home invasion, theft, and intentionally damaging property. The matter was heard in the High Court of Australia. Clark was sentenced to six years’ imprisonment with a non-parole period of three years and nine months. His co-offender received a sentence of three years and nine months’ imprisonment with a non-parole period of one year and nine months. The central legal issue before the court was whether the sentencing judge was correct in imposing a different sentence on Clark compared to his co-offender, despite the prosecutor’s submission that they should receive the same head sentence.

The court considered whether it was appropriate to differentiate between Clark and his co-offender based on their respective roles in the crime and their criminal records. The court noted that while the prosecutor argued for parity, the sentencing judge had considered the varying roles and criminal histories of the offenders. The court found that the sentencing judge had appropriately exercised their discretion in imposing different sentences, taking into account the mitigating and aggravating factors unique to each offender. The appeal was dismissed as the court upheld the sentencing judge's decision.

The High Court confirmed that differences in roles and criminal histories could justify varying sentences even when the core offences are similar. The court emphasised that while considerations of parity are important, they are not determinative in every case. The differing sentences were thus affirmed, and the appeal was dismissed.

Orders